December 18, 2008

Privacy Rights and Security

I recently shared The Meaning of Mumbai on FriendFeed sparking a discussion with Cameron concerning various security measures after 9-11. Cameron's initial remarks focused on security and fear extremes (live in a box and do nothing) and slippery slopes. While it is important to be aware of possible dangers, such general extremes do not inherently delegitimize specific, less extreme measures.

However, Cameron's latest response appeals to basic rights:

I don't see how any of that makes it reasonable to get rid of any hope for a fair trial, suspending basic human rights for others just because we think they may be bad, and ignore torturing laws by using loop holes in location. I know most don't mind "I would rather some subset of innocent people to make sure all the bad people are dead," but I guess I don't believe in the good ol' fashioned "Kill them all, and let god sort them out." So, the point I'm trying to make, is that why should you take away other people's right, morally / legally / etc, just because you don't use them / if you were in that position your going to heaven anyways / etc. Why do you get to decide that they don't need that right, or that they don't get a second chance?

I plan to blog about each one separately. I don't expect to cover each exhaustively or arrive at any definite conclusion about any of them. My goal is to lay the ground work for a discussion about these issues and more than ever I want to encourage the reader to join this discussion in the comments or on their on blog/notes.

What is a Right

The concept of a right within this context is that of a moral right. As Jefferson put it in the Declaration of Independence:

all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

In other words, a right is a moral obligation granted by the Creator and existing between any two people by virtue of their humanity. I am inclined to recognize four basic human rights:

Life

Liberty

Property

Legal Equality

Legal equality is not generally included, but equal treatment under the law (all men are created equal) is generally recognized as just and it seems reasonable and simplest to include it in the list.

Privilege

The concept of rights must be distinguished from legal privilege. Legal privileges may have similar status under the law in certain countries, but unlike rights, they are neither unalienable nor endowed with inherent moral power by the Creator. Privileges are endowed by organizations (such as government) to people. Because they are granted by government, they can just as easily be taken away by government.

As a side note, a necessary consequence of the argument I recently made concerning the lack of moral obligation within the philosophical framework of atheism is that those who reject the existence of a higher power also deny any foundation for a universal moral standard, thereby denying any foundation for inherent human rights. Such philosophical frameworks can support only concepts of utilitarian privilege.

Privacy

For an appeal to privacy to be relevant to government security measures, it must be a right, as privileges lack moral power and are subject to the whims of government. It seems reasonable to me to derive a limited right to privacy from the rights of liberty and property. By virtue of being free to direct one's life, define personal happiness goals, etc. one seems free to decide not to reveal what they think. Similarly, by virtue of property rights, one is secure in property. One has a right to keep other people off one's land, a right against unreasonable search and seizure, etc.

What isn't so clear is how this extends beyond one's property. For example, consider FBI requests for telephone records. IF privacy rights extend to phone records then one must have an inherent property right over information shared through someone else's property (phone lines, switching stations, etc.) and the record of that call (time, source, destination). Because another's property is in use, and that person has the right to do as they wish with their property, it seems to me that they have the right to offer their property in service to others as they wish. They may elect to promise certain contractual privileges to users of their service, but I don't see any justification for that the idea that when I use someone else's property to communicate, I receive any inherent rights in that property.

2 comments:

1 - My argument is that rights are not derived from government. As such, the Bill of Rights is largely irrelevant, except that it enumerates some derived rights and privileges. However, Constitutional amendments do not create rights. If they are rights, they must be understood to be so by some other means.

2 - I did make a passing citation from the Bill of Rights when I referred to "unreasonable search and seizure". ;)